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EXHIBIT 10.22B
AMENDMENT TWO
TO THE MANUFACTURING AGREEMENT
BY AND BETWEEN VIVUS AND CHINOIN
This Amendment Two ("Amendment Two"), effective as of December 18, 1998
("Amendment Date"), by and between VIVUS, Inc., having a principal place of
business at 000 Xxxx Xxxxxxxxx Xxxxx, Xxxxxxxx Xxxx, XX 00000, Xxxxxx Xxxxxx of
America ("VIVUS"), and CHINOIN Pharmaceutical and Chemical Works, Ltd., having a
principal place of business at X-0000, Xxxxxxxx, To u. 1-5 Hungary ("CHINOIN")
(VIVUS and CHINOIN collectively, the "Parties"), amends (i) that certain
Manufacturing Agreement by and between and Parties dated December 20, 1995 (the
"Agreement") and (ii) Amendment One to the Agreement dated December 11, 1997
("Amendment One").
The Parties desire to amend the Agreement and Amendment One as set forth
herein below;
NOW, THEREFORE, the Parties agree as follows:
1. AMENDMENT. This Amendment Two hereby amends the Agreement to incorporate
the terms and conditions set forth in this Amendment Two. The relationship of
the Parties shall continue to be governed by the terms and conditions of the
Agreement and Amendment One, as amended herein; and in the event that there is
any conflict between the terms and conditions of the Agreement or Amendment One
and this Amendment Two, the terms and conditions of this Amendment Two shall
control. As used in this Amendment Two, all capitalized terms shall have the
meanings defined for such terms in this Amendment Two or, if not defined in this
Amendment Two, the meanings defined in the Agreement.
2. MODIFICATION TO THE AGREEMENT
2.1 The Parties confirm that in the frame of the Agreement VIVUS has
firmly ordered from CHINOIN under PO# [*] the supply of [*] Product for the year
1998. After CHINOIN having delivered [*], VIVUS has requested CHINOIN to stop
manufacturing and to postpone all further shipments. [*] of Product already
manufactured remained on stock at CHINOIN. A further [*] of Product ordered and
the [*] minimum purchasing obligation of VIVUS for the calendar year of 1999,
total [*], an obligation of VIVUS, has not been manufactured by CHINOIN.
2.2 The Parties agree that VIVUS shall not be required to purchase from
CHINOIN any amount of the Product in the remainder of calendar year 1998 and
VIVUS shall have only the following firm commitments to purchase the Product
from CHINOIN during the validity of the Agreement:
2.2.1. VIVUS agrees to take delivery of [*] of the Product already
manufactured and in stock at CHINOIN by December 31, 1999,
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
omitted portions.
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latest. Notwithstanding any provisions in the Agreement or Amendment One to
the contrary, including but not limited to Section 2.9, VIVUS agrees to pay
CHINOIN in full for this [*] of the Product or any part thereof in four
equal monthly installments within four months after accepting delivery.
VIVUS will place with CHINOIN not less than eighty percent (80%) of its
orders for the Product (based on mass) until VIVUS accepts delivery from
CHINOIN all of this [*] of the Product.
2.2.2. VIVUS agrees to purchase an additional [*] of the Product (i.e., in
addition to the [*] referred to in Section 2.2.1. above) at a later date
during the validity of the Agreement.
VIVUS will place with CHINOIN not less than sixty percent (60%) of its new
orders for the Product (based on mass) until VIVUS accepts delivery from
CHINOIN of all of this additional [*] of the Product.
2.2.3. VIVUS agrees to place not less than sixty percent (60%) of its
orders for the Product (based on mass), if any at all, from CHINOIN after
having completed all of its purchasing obligations as detailed above in
Sections 2.2.1 and 2.2.2 of this Amendment Two. However, CHINOIN will not be
obliged to supply in any case more than [*] of Product annually.
2.2.4 Section 2.12 of the Agreement, as originally agreed upon and amended
by Amendment One, is hereby deleted in its entirety.
2.2.5 Parties agree that any minor quantity deviations less than plus-minus
100 grams of the quantity of Product available at the time VIVUS accepting
shipment from the quantity stipulated in this Amendment Two will be accepted
without correction at the next shipment or stipulated quantity. CHINOIN
agrees to notify VIVUS about any reduction of its [*] stock exceeding [*]
due to sale to third parties or to other reasons. Such variation will be
added to the [*] obligation of VIVUS as stipulated in Section 2.2.2 above.
2.2.6 In the event VIVUS terminates the Agreement without cause prior to
accepting delivery, or the Agreement expires on December 31, 2002 without
VIVUS accepting delivery of a part or all of the quantities of the Product
stipulated in Section 2.2.2 as amended by the stipulations of Section 2.2.5,
VIVUS will pay to CHINOIN before leaving the Agreement a monetary settlement
to compensate reasonable lost net profits consistent with CHINOIN's
historical net profits on the manufacture of the Product. Such historical
net profit to be determined by an audit performed by a certified public
accountant or other representative acceptable to CHINOIN of CHINOIN
financial records.
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
omitted portions.
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All sales values of the quantities not accepted for delivery by VIVUS
and subject to monetary settlement as above will be calculated as if
delivered in the calendar year of termination or expiry above the
quantities actually delivered in that year, if any, with prices
stipulated in Section 2.7 of this Agreement as amended by Amendment One.
CHINOIN agrees that the settlement of such agreed monetary settlement by
VIVUS will satisfy in full any and all of VIVUS' obligations referred to
in the Sections above to CHINOIN under the Agreement, Amendment One, and
this Amendment Two.
2.3 CHINOIN agrees that it will not manufacture the [*] of the Product
referred to in Sections 2.2.2 and 2.2.5 above unless and until VIVUS requests in
writing that CHINOIN do so. CHINOIN will not be entitled to receive from VIVUS
any lost profits based on any portions of such 4.35 kilograms that CHINOIN
manufactures without having received a written request from VIVUS to do so.
3. ENTIRE AGREEMENT. The Agreement and any Exhibits and Addenda thereto
together with this Amendment Two and Amendment One constitute the entire
agreement between the Parties with respect to the subject matter thereof and
supersede all prior and contemporaneous communications, representations,
agreements or understandings, either written or oral, between the Parties.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment Two.
CHINOIN PHARMACEUTICAL AND
VIVUS, INC. CHEMICAL WORKS CO., LTD.
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXXXX XXXXX
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxxxx Xxxxx
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Title: President and CEO Title: Executive Vice President
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*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
omitted portions.
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